Thursday, December 31, 2009

I was looking with a buyer at condominium units in Washington, DC and have been making casual inquires.

So, I found out that one condominium unit owner is thinking of sellingand has a garage spot,but his garage spot has an implied easement. How is this possible? The way the condominium was designed,the builder had a parking spot (this owner's spot) in the same path as the building's trash area. It is apparent that the trash can not be removed while a car is parked in the spot. So the owner must move his car out of the way every time the building has trash pick up. A major inconvenience.This has been going on for over 20 years. This was either a structural defect by thecondominium builder or the condominium builder got greedy and tried to create as many parking spots as possible,that could be sold along with condominium units. Either way,the home buyer never thought about potential easement issues when buying the parking spot and my buyer would potnetially be buying into an easement. Apparently the owner has tried many times unsuccessfully to fight the easement.The easement has made it very difficult for the owner to rent or sell his place. Because of the easement,this garage spot remains empty almost all of the time because of the hassle. It is unfortunate and really hurts the value of his property.

I know property owners who have yards that have been used for many years as short cuts and paths to different destinations. So, some people have claimed the area on the property as an easement.

When you are buying a home,whether a single family home or a home in a Condo/HOA community,read all of the disclosures carefully. There is a section for home ownersto fill in,answering if there are any easements.

Below is some more information about easements.

1~CHGO2:20136943.v1 |9/25/03 11:41 AMEASEMENTSI. INTRODUCTIONA. An easement is a non-possessory right in the holder of an easement to make someuse of land. In other words, an easement is a “lesser” interest in the fee estate thatallows the party benefiting from the easement to make some use of the property,such as using it for access, installation of utility lines, etc.B. Dominant vs. Servient:1. The “holder” of an easement right, or the party that is benefiting from theeasement, is referred to as the “dominant tenant”. Likewise, the propertybenefiting from an easement is referred to as the “dominant estate” or“dominant tenement”.2. The party “burdened” by the easement is referred to as the “servienttenant”. Likewise, the property burdened by the easement is the “servientestate” or “servient tenement”.C. Exclusive vs. non-exclusive easements1. Because an easement right is non-possessory, it generally does not allowthe party benefited by the easement to exclude others or to stop them fromalso enjoying the property. In other words, easements are generally nonexclusive.2. However, easements can be specifically granted as exclusive easements,allowing the holder of the easement right the ability to exclude others.II. TYPES OF EASEMENTS AND CREATIONA. Appurtenant easements vs. easements in gross1. An appurtenant easement is an easement that is intended to benefit aparticular piece of land (dominant estate/tenement) rather than a particularindividual. In this case, there is also a servient estate/tenement—the landover which the dominant estate has its easement rights.a. Example: An easement is granted to a shopping mall parcel foraccess across the neighboring property owner’s private road inorder to allow shopping mall customers to get from the shoppingmall parking lot to the street. This is an easement appurtenant tothe shopping mall parcel, which is the dominant estate. Theneighbor who has granted the easement owns the servient estate.2~CHGO2:20136943.v1 |9/25/03 11:41 AM2. An easement in gross is intended to benefit a particular individualregardless of whether she owns any land. The land over which thisindividual has her easement rights is the servient estate/tenement. In thecase of an easement in gross, there may be no dominant estate/tenement.The intent is to benefit the holder of the easement right, but the holder’sright to use may well enhance the value of the property she uses inconnection with her exercise of an easement right.a. EXAMPLE: Jim grants Sally an easement to fish in his pond,which is located on his privately owned property. As part of thiseasement right Sally is also granted an easement to enter ontoJim’s property to go to and from the pond. While Sally may livenext door, she may move miles away, and the easement followsher; NOT her property. This is an easement in gross; Sally is thedominant tenant; Jim is the servient tenant; Jim owns the servientestate (with the pond on it). There is NO dominant estate.3. Most of the easements you will come across in commercial real estatetransactions are appurtenant easements.B. Easement by implication, or quasi-easement1. Narrow circumstances; court would be implying the easement as a matterof law—requires a court finding that the parties had intended to create aneasement but simply failed to do so expressly2. An implied easement can be created only when the grantor conveys aportion of the real estate he owns or when he divides a larger tract amongseparate grantees. In either case, a severance of parcels occurs, which isa necessary prerequisite to an implied easement.3. An easement can be implied at the time of severance ONLY if the“easement” use existed prior to the severance. Susie owns 2 lots, one ofwhich fronts on a street and one of which is landlocked. Susie’s drivewaycrosses both lots. Susie decides to keep the landlocked parcel and sell offthe frontage parcel. Susie forgets to reserve a driveway easement foringress an egress to her parcel. In order for Susie to establish that animplied easement should be created, one of the prerequisites Susie mustprove is that she used the driveway located on the frontage property toaccess her property PRIOR to the conveyance of the frontage property;i.e., PRIOR to the severance.3~CHGO2:20136943.v1 |9/25/03 11:41 AMC. Easement by necessity1. When property is divided in a way that leaves a part of the propertywithout access to a road (i.e., landlocked), an easement of ingress andegress (“way by necessity”) is implied across the other part(s).2. An easement by necessity exists only as long as the need exists. In otherwords, if the landlocked property later has direct access to another publicroad, the prior implied easement by necessity would go away.D. Easement by prescription1. Analogous to adverse possession—complicated concept but the bottomline is this—an easement by prescription essentially follows the line ofthought that “it has been used for so many years for this purpose, aneasement, though not expressly created, was created by prescription”.Example: Joe’s property is located between Sally’s home and the park.Every day Sally walks across Joe’s property with her dog to get to thepark. Every day Sally walks back from the park across Joe’s propertyback home. Sally has been doing this for 30 years (very old dog). Sally’sargument that she has an easement by prescription would flow from thistype of fact pattern.E. Affirmative and negative easements1. An easement is affirmative when it entitles the dominant tenant to use theservient tenement for a particular purpose, such as Sally’s right to useJim’s fishing pond.2. An easement is negative when it entitles the dominant tenant to preventthe servient tenant from using the property in a particular way. Forexample, if Ralph gave Carol an easement for a view corridor acrossRalph’s property such that Carol’s view of the lake would never getblocked, Ralph could not build a tall structure, wall or other obstruction,or allow an obstruction (such as a tree), to hinder Carol’s rights under herview corridor easement. This is referred to as a negative easement;Carol’s view corridor rights allow her to compel Ralph to NOT dosomething.F. How are easements created?1. By express language, or grant. This is the most common method ofgranting an easement: by a deed or written conveyance. “I grant you anon-exclusive perpetual easement right to cross the westernmost 10 feet ofmy property.”4~CHGO2:20136943.v1 |9/25/03 11:41 AM2. By reservation. In conveying land by deed, if the grantor wants to reservecertain easement rights, another way to create that easement is byreservation: “I convey fee interest in Lot 1 to you, Grantee, but I, Grantor,reserve a non-exclusive easement for ingress and egress over the drivewaylocated on Lot 1.” This is a less common, but perfectly acceptable,manner of creating easements.G. Easements distinguished from licenses.1. Easements and licenses are similar property interests, but there are someimportant distinctions:a. An easement is generally a perpetual, non-revocable right, while alicense is often revocable and is typically limited in duration.b. An easement is insurable from a title insurance standpoint, while alicense is not typically insurable.c. An easement is typically recorded; a license is not typicallyrecordedd. Generally speaking, an easement is a more powerful propertyinterest than a license.2. Requirements for creating an easement (generally the same as deedformalities); when these formalities are not complied with, the grantee hasmerely a license:a. A written instrumentb. signed by the grantor andc. delivered to the granteed. Easements are also typically recorded, which provides notice tothird partiesH. Examples of certain types of easements:1. Short form utility easement2. Easement for ingress and egress over someone’s property3. Cross-access or reciprocal easement and maintenance agreementa. Shared drivewayb. Shopping center parking area5~CHGO2:20136943.v1 |9/25/03 11:41 AM4. Construction easement5. Conservation easement6. Easement for light and/or aira. No common law right to light or view—learn how to growmushroomsb. Air rights use7. Condominium/Townhome Declarations8. Declaration of Covenants, Conditions, Restrictions and Easementsa. Shopping mall REAsb. Mixed Use High-Rise Declaration of CC&RsII. EXISTING EASEMENTSI. One of the most important jobs a real estate lawyer has during the title and surveyreview period during contract due diligence is to identify all existing easements,both benefiting and burdening the property that the purchaser is acquiring.1. Identify whether easement benefits or burdens the property, or botha. If it benefits the property, make sure the easement is added as aninsured parcel under the title policy. If it is not insured, and thepurchaser is somehow deprived from its use of the easement, thepurchaser will have NO recourse against the title company. VERYIMPORTANT.b. If it burdens the property, determine to what extent, location, etc.2. Identify the type/nature of the easementa. Is it a utility easement? Access easement?b. Is the easement critical to the use of the property?c. You need to get a full understanding of the purpose of theeasement, its function, who is benefited, whether it is necessary,etc.3. Ascertain the location of the easement6~CHGO2:20136943.v1 |9/25/03 11:41 AMa. This is one of the CRITICAL elements of the title and surveyreview. If the easement is, say, a sewer line maintenanceeasement, make SURE it is not located under any improvements.If it is located under existing improvements, you must look to thelanguage in the easement to determine whether that is a problem(typically anytime an easement runs under improvements that IS aproblem).4. Identify which party has maintenance obligations, if anya. If the easement is a cross-access easement for a driveway,someone needs to maintain the driveway, repave it, plow it, etc.Typically a cross easement will obligate one of the parties toperform the maintenance and the other party will share in themaintenance costs.5. Identify whether there are any costs/payment obligations associated withthe easementa. Same example regarding cross-access easement for driveway6. Does easement provide for the right to obtain an estoppel from the otherparty/parties to the easement?a. Sometimes easements, particularly if they are complex enough,contain rights to obtain an estoppel from the other party/parties tothe easement to verify that all fees are current, all maintenance hasbeen performed, there are no disputes, no pending litigation, etc.7. Is there any way to get rid of a burdensome easement or somehow obtaintitle company relief?8. Terminationa. Unity of ownership/merger—operation of lawb. Valid written releasec. Abandonmentd. Lapse of time for easements limited in duration (such as atemporary construction easement)e. End of necessityf. By default7~CHGO2:20136943.v1 |9/25/03 11:41 AMg. Invalidityh. In the case of an easement by prescription, failure by the dominanttenant (benefited party—Sally walking her 30 year old dog) toobject to unreasonable interference with the easement by theservient tenant (Joe erects a fence across the easement area) or athird party; if the dominant tenant (Sally) fails to enforce that right,the easement will go away.III. EASEMENTS THAT RUN WITH THE LANDA. “Running with the land” is a phrase that means that, no matter who owns the realestate, the easement (or other covenant) benefits or burdens the successor ownerof the property. In other words, a beneficial easement that runs with the land willbenefit future owners, while a burdensome easement that runs with the land willburden future owners. In the discussion of appurtenant easements and easementsin gross, an appurtenant easement runs with the land of both the benefitted(dominant) and burdened (servient) estates (tenements). An easement in grosswill run with the land as far as the burdened (servient) estate (tenement) isconcerned, but it will not run with the land of the benefited (dominant) estate(tenement), because an easement in gross is personal in nature, and is not tied tothe benefited party’s property ownership.IV. PERSONAL EASEMENTS--These are easements in gross, as discussed above. Theyfollow the person, not the real estate. They do NOT run with the landV. ENFORCEMENTA. An easement is a property right, and the benefited party has the right to enforce itjust as they would have the right to enforce a deed conveyance or another type ofland grant.B. If the nature of the enforcement is such that the benefited estate/party is trying tocompel the burdened estate/party to honor the rights granted by the easement, thebest avenue of protection is making a title claim contemporaneously with ademand from the other party to the easement. A necessary precursor to makingthe title claim is that the easement was insured under the title policy.C. If the nature of the enforcement is such that the burdened party is trying to compelthe benefited party to comply with the terms of the easement (such as payingnecessary share of maintenance costs), you would seek compliance like youwould in any other contractual dispute.D. Some easements provide for arbitration as an alternative dispute resolutionmechanism.

Thursday, December 24, 2009

Interesting trend in Mongtomery County, MD and Washington DC, with the number of homes that sold and settled on Christmas Eve: 1998=0, 1999=9, 2000= 0, 2001= 12, 2002=20, 2003=31, 2004=16, 2005=0,2006= 1,2007=5, 2008=16, 2009...?. Does these numbers correlate to how you saw the market during these years? So,if you look at Christmas Eve as any kind of barometer,the real estate market has experienced a positive trend the last few years. May this trend continue.

It's a great day to buy a house. I'm going to be on office phones from 11:00 a.m. - 1 p.m. 301-718-4100 or my cell 301-943-4370 Owners of unsold homes may be jolly and waiting for the gift of an offer on their homes. They may rather just sign and celebrate then have a tough back and forth negotiation that takes some joy out of their holiday.

Wednesday, December 23, 2009

I was at the supermarket and a gentleman introduced himself to me,asked if I am Adam Bashein, the realtor. He recognized me from my advertising, told me his home in a Maryland suburb isn't selling,the listing expires soon and if his home doesn't sell,he's going to give me a call. He already bought and moved, so the home is vacant. I said it was a pleasure meeting you,thanks for recognizing me,it is good to see advertising dollars well spent and hope to speak with you soon. He has my contact information.

A short while later I went out to tour homes that are on the market for sale,including his,so if I have the pleasure of speaking with the gentleman again,I can talk about the features of his home verses the competitions' home.

It's about marketing and being at the right place at the right time.

What happens when a home seller isn't sure that he/she wants to stay with his/her realtor? How does a seller go about exploring other options before making a decision to stay with his/her realtor or to make a switch. How should the potential realtors follow up on their conversations with these sellers?

When home sellers are unhappy with their listing agents, they have 2 choices,based on the verbiage in the listing agreement: (1)either to terminate the relationship with written notice or (2)to wait for the listing expires. Of course, if they decide not to sell, then they can withdraw their home from the nmarket. If the home sellers want to talk with other realtors to see what other options are,then the sellers must take every initiative in making telephone calls and inviting realtors to meet with them in person. Realtors cannot market/solicit business from home sellers who are currently in an agency agreement with another realtor. So the only way I will talk with the seller is if he takes calls me to talk on the telephone or to meet with him

It's about marketing and being at the right place at the right time. I'm here whenever you need me in Metro DC.

Tuesday, December 8, 2009

I was fortunate to recently get a listing in my neighborhood,Kemp Mill,a subdivision in Silver Spring,Maryland. Some people,including the seller asked me if the winter was indeed a good time to sell or if it was better to wait until the spring.There are indeed good arguments for waiting until the spring,but here are some reasons to sell now:1a. The first time home buyer tax credit was extended until April 30th 2010. Contracts need to be ratified by April 30th,2010 and settlement by June 30, 2010 and (b) they added a tax credit for repeat home buyers who are selling. Contracts need to be ratified by April 30th,2010 and settlement by June 30, 2010 ---So,one thought on waiting to put your home on the market in the spring is that some buyers don't want to purchase during the academic year. Some buyers may not want to buy during the winter months. It may be hard for the seller to keep up the house/make it show well in the winter with snow,raking and other household tasks.The potential tax credits won't be available at the end of the academic school year (at least not at this point). There may be more buyers trying to take advantage of the opportunity and so in a sense we are in the "spring market" right now.--If you are a repeat buyer and want to be eligible for the tax credit,you also need to put your home on the market now as the repeat home buyer tax credit is based on selling your current home and buying your new home in a certain time frame.

2. Another reason to sell now or anytime is that people move at any point during the year due to such things as job transfers,if their family expands and their current home is now too small,they are renting and their lease is up and for such unfortunate circumstances as death and divorce.

3. Some buyers move look for homes in the winter...if they are looking for a winter home.

Interestingly,in part,due to the snow over the weekend,I got a call from buyers who want to see my listing today at 1014 South Belgrade Road. Perhaps they found the walk to their synagogue to be difficult/long probably because of snow,ice and slush on the sidewalks. My listing is right around the corner from their synagogue,so the home would be a perfect location for them.

At my open house on Sunday,one group came through who is also interested in the location for being close to the synagogue. Ideally they would like a home with a main floor bedroom (rambler or cape cod)because one of the buyers has arthritis is their leg. There are a couple of ramblers/cape cods on the market,but if one is Sabbath observant and needs to walk to his/her synagogue on the Sabbath and High Holidays,my listing might be a better fit,as they wouldn't have a flat walk (from both homes one needs to walk up/down a hill). If one needs a main level bedroom,he or she might be able to convert the carport into a bedroom or put an addition on the home.

Hopefully one of these buyers will be the next home owner of 1014 South Belgrade and if not,there are plenty of buyers out their looking for a home with a superior location.

Anyhow,the point is that one can make good arguments for selling in any season. Buyers are always out there with different circumstances and the extension of the tax credit for first time home buyers as well as the repeat home buyer tax credit certainly make it advantageous to sell your home now.

Saturday, December 5, 2009

According to today's (12/5/09) Washington Post,30-year mortgages are at their lowest level on record @4.71 percent. According to the Post,rates have been "pushed by an aggressive government campaign to reduce borrowing costs".***

It is a great time to buy a home. The lower the rates are the more house you can buy.With the combination of historic rates and housing prices stabilizing,you should really consider buying. If you need to find a lender,I'd be happy to refer you to somebody.

As far as selling,low rates enable buyers to buy more house than ever and if your home is priced correctly/shows well and is easy to preview,your home will likely sell.

Real estate markets vary by state and by subdivision. I work MetroDc if you want to talk about the market to see if you are comfortable with the housing prices and begin the search with you.

It's a great day to buy a home. If you live or are interested in living in Silver Spring,Maryland stop by my listing tomorrow (Sunday 12/6/09 from 2-5).The address is 1014 South Belgrade Road Silver Spring,MD 20902